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ADR 12 mark exam answer
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Model answer for the question 'What are the problems with litigation and how does ADR overcome them?' (12 marks)
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What are the problems with litigation and how does ADR overcome them?(12 marks)
When it comes to resolving civil disputes, claimants have several options to achieve
the ideal and best-suited outcome – they do not have to simply rely on litigation
alone. This is because litigation has several limitations that mean that is not always
the best option to resolve disputes between parties. Firstly, it is very time consuming
– it can take several months for a case to be heard in court and even longer for
judgements to be carried out simply due to the complexity of the process. Also, it is
confrontational and only has one ‘winning’ party, which may lead to a breakdown of
relationship between the two parties and potentially hinder future communication
between them. Furthermore, litigation is public, and high-profile cases have
substantial media coverage. Even though smaller or lesser-known cases do not have
as much (if any) media attention, the courtroom is a public place meaning the trial
can be watched by anyone who would like to. Another challenge is that the process
of litigation is expensive, any claimant/plaintiff must pay the fees of their lawyers,
which over the considerable time of the proceedings can quickly become very
substantial. Additionally, legal aid can be limited as there is very little government
funding for this. Finally, litigation is a very inflexible process, with set times and
dates for court proceedings to take place- and if any of this is missed it can have
serious impacts on the outcome of the case.
However, Alternative Dispute Resolution (ADR) provides differing solutions to these
problems. Some forms of ADR are specifically designed to preserve positive
relationships between parties, such as online dispute resolution, negotiation and
mediation, by introducing another external and impartial party (a mediator) to help
the parties come to an effective agreement. ADR also allows both parties to
communicate, allowing them to gain a greater understanding of each other’s
positions. In cases that use litigation, the solution is always a win-lose situation for
the parties involved, however ADR offers some possibilities for a win-win solution.
For example, in negotiation parties may be able to find an acceptable compromise,
or think of another solution that will satisfy both parties – and this outcome is simply
not possible when litigation is used. Forms of ADR offer a more private and informal
route to help parties resolve issues. An example of this is arbitration, which is
considered to be very similar to formal litigation. The main difference between the
two is that arbitration is private – cases are submitted to an independent arbitrator
who will make a binding decision on the case.
ADR also allows parties to avoid expensive legal fees, for example in a tribunal legal
representation is not necessary – so parties do not require expensive trained legal
professionals to represent them. Additionally, this may allow them to feel more
involved in the process, as they are given the opportunity to represent themselves
which they may find valuable. Moreover, ADR could provide a more proportionate or
appropriate approach for the parties to take – if the main aim of the claimant/plaintiff
is to gain an apology, a change in policy or an explanation they are able to do so as
ADR offers a wider range of possible outcomes, rather than just a simple verdict or
ruling by a judge. Lastly, ADR procedures offer a greater degree of flexibility as they
do not require a formal hearing and can take place through a variety of different
communication channels, including online or over the phone.
Despite being a less traditional method of attempting to resolve disputes, ADR
provides a helpful alternative to litigation. Certainly, there are some issues with ADR
itself, such as the need for good faith between parties, the fact resolutions may not
be legally binding, or the possibility that there may not be a guaranteed solution, but
in many cases it is able to provide a possible method that can be used primarily
when a disagreement takes place, and thus prevent the need for the parties to
commence legal proceedings. If parties still do not reach an agreement, they may
still have the option to appeal or proceed to court, and so ADR can be used as an
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